ENCEOACHMENT OF THE FEDERAL UPON THE 
STATE JUDICIARY-CONFLICT OF 
THE JUDICIAL POWERS. 


The judiciary of the United States is the subtle corps of sappers 
and miners constantly working under the ground to undermine the 
foundations of our confederated fabric.— Jef&t'son, in letter to Bitchie, 
1820. 


SPEECH 


HON. RICHARD W. TOWNSHEND, 

I' 


OF ILLINOIS, 


m THE 

HOUSE OF REPRESENTATIVES, 

JUNE 12, 1878. 


WASHINGTON. 

1878 . 









f/ 

/ . 

. I 







SPEECH 


OF 

HON. RICHARD W. TOWNSHEND. 


On the bill (H. E,. No. 5069) to amend sections 1, 2, 3, and 10 of an act to determine 
the jurisdiction of the circuit courts of the United States, and to regulate the 
removal from State courts, and for other purposes, approved March 3, 1875. 

CONDITION OP THE FEDERAL COURTS. 

Mr. TOWNSHEND, of Illinois. Mr. Speaker, it is known to those 
acquainted with such matters that the Federal courts are over¬ 
crowded with business. They are so far behind with their work that 
it will require three years to dispose of the causes now pending in 
them. But it cannot with any accuracy be determined when the new 
cases flowing into these courts can receive attention. The expenses 
of these courts are rapidly growing to an enormous extent. Their 
cost to the National Treasury in 1850 was only |497,558..54; in 1860, 
$936,477.61; at the end of the next decade it was $2,162,109.82. In 
1875 it had reached $3,322,182.27. At the beginning of the present 
term of the Supreme Court there were nearly nine hundred cases on 
the docket. I have no means of knowing with certainty the number 
of causes on the dockets of the various circuit courts. 

But we may form some idea of the number on those dockets from 
a statement made lately in the debates in another place, in which it 
was asserted that there were pending, on January 1,1876, in the court 
of Chicago, which is in the northern district of Illinois, 3,045 suits. 
There were pending in that court on January 1,1877, 3,702 suits, and 
on January 1,1878, 4,388 suits. I have not had access to the statistics 
in other circuits. I will however assume that the condition of the 
division just cited furnishes a fair sample of the remainder. These 
figures show the rapidity with which the cost of the courts and 
the amount of business grow, but they dn not reveal to us the enor¬ 
mous expense to litigants which mi^t result from the delay and in¬ 
convenience of litigation in these courts. Justice is an essential at¬ 
tribute of good government; but in order that it may be a blessing 
it must be dispensed freely, without delay, and be within the reach 
of all. 

NATURE OF THE BILL AND AMENDMENT. 

Let us now endeavor to ascertain the best way to remedy this con¬ 
dition of the courts and avoid future evils of thie same nature. The 
bill before us from the Judiciary Committee does undoubtedly fur¬ 
nish some remedy, and it meets with my approval; but it does not 
afford that full measure of relief which is easily attainable and de¬ 
manded by public interest. It is a very wholesome measure as far 
as it goes, and will be hailed with much gratification by the people, 
but it does not go far enough. I shall offer an amendment to this 
bill which will operate as a permanent and effectual relief. In the 
remarks I may make I shall devote my time mainly to the discussion 
of this amendment and to the discussion of principles applicable 
thereto: 

Strike out all after the word “petitioners,” in line 51, and all from line 52 to line 
56, inclusive, except the words “or a controversy between citizens of a State and 
foreign states; ” also strike out the words “ or subjects,” online 57; also strike out 



4 


the word “and,” in line 58; also strike out all from line 59 to line 75, inclusive ; 
also strike out the words “and if in any action,” in line 102; also strike out all 
from line 103 to 129, inclusive, and insert after the word “jury,” in line 129, the 
following: 

That sections 639, 640, 641, 642, 643, 644, 646, and 647 of chapter 7 of the Keyised 
Statutes, in relation to the removal of causes from State courts into the circuit 
courts of the United States, he, and the same are hereby, repealed. 

' Sec. 2. That section 2 of an act entitled “An act to determine the jurisdiction 
of circuit courts of the United States, and to regulate the removal of causes from 
State courts, and for other purposds,” approved March 3, 1875, be amended by 
striking out the words, “ or in which there shall be a controversy between citizens 
of different States, or a controversy between citizens of the same State, claiming 
land under grants of different States, or a controversy between citizens of a State 
and foreign states, citizens, or subjects.” Also, by striking out in the same section 
the words “and when, in any suit mentioned in this section there shall be a contro¬ 
versy which is wholly between citizens of different States, and which can be f ul^ 
determined as between them, then either one or more of tlie plaintiffs or defend¬ 
ants actually interested in such controversy may remove said suit into the circuit 
court of the United States for the proper district.” Also, that section 3 of said 
last-mentioned act be amended by striking out all of said section after the words 
“ and the said copy being entered as aforesaid in said circuit court of the United 
States, the cause shall then proceed in the same manner as if it had been originally 
commenced in the said circuit court:” Provided, That nothing contained in this 
act shall affect any causes in which proceedings for removal from State courte 
shall have been commenced before the passage of this act. 

The main features of this amendment were embraced in a bill in¬ 
troduced by myself on October 29, 1877, as an original bill, and re¬ 
ferred to the Judicidiry Committee, it being one of the bills for which 
the pending measure is reported as a substitute. It does not in any 
degree abridge the grounds of original jurisdiction in the Federal 
courts. It leaves them in full and undisturbed possession of all the 
power which Congress has conferred upon them as courts of original 
jurisdiction. It does not deprive them of a single case which may be 
legitimately brought therein at this day, nor does it take away from 
them the power to remove causes from the State to Federal courts in 
any case arising in law or equity under the National Constitution or 
made under their authority, or any cause affecting embassadors, 
other public ministers and consuls, any case of admiralty and mari¬ 
time jurisdiction, any controversy to which the United States is a 
party, any controversy between two or more States or between a 
State and citizens of another State. 

The purpose of this amendment is to prevent the encroachment of 
the Federal judiciary upon the State courts in cases actually com¬ 
menced in those courts and over which they have acquired and ought 
to acquire jurisdiction. 

UNAMERICAN AND EVIL TENDENCIES OF PRESENT LAW. 

This law of removal is un-Ametican in its tendencies. It is stealth¬ 
ily introducing beneath the foundation of our present constitutional 
form of Government a lever by which the advocates of centralization 
may overturn and revolutionize the Government of Washington, 
Jeferson, and Madison, and in lieu thereof establish the Government 
which Hamilton and John Adams sought to fashion for us. 

That law has already nearly demolished the independence of the 
State judiciary and threatens to destroy their very existence. It 
disturbs the constitutional balance of the Government, and may 
bring on a conflict between the State and Federal judicial power 
which will tax the patience of the people and the wisdom of the 
ablest statesmen to the utmost in order to save the country from vio¬ 
lence and civil war. It has inflicted much inconvenience and great 
expense upon the people often defeating the ends of justice by prac¬ 
tically placing it beyond the reach of the weak and the poor. It has 
inundated the Federal courts with a flood of cases far beyond their 
capacity to adjudicate. It has heavily increased the burden of taxa¬ 
tion in a period of dmeful distress. 

If I have correctly stated the effect of the law, can any conscien¬ 
tious and intelligent representative of the people hesitate to vote for 


t 


5 

its repeal ? I am sensible of the fact that we should approach the 
discussion of questions affecting the judiciary system entirely free 
from sectional and partisan bias, and should fully realize that we are 
the chosen representatives and law-makers for the whole Union; that 
our enactments are to affect the peace and welfare of every locality 
and every class under our flag. If we are solemnly impressed with 
this responsibility, we are prepared to take into consideration with 
coolness and deliberation questions which may produce the greatest 
good to the greatest number. 

The past reveals to us that he who advocates most effectively main¬ 
tenance of the constitutional balance of our Government, preserving 
the energies of each branch, does in the largest degree promote liberty, 
order, and peace. I am as ready as any one to concede and defend 
the rightful and constitutional powers of the Federal courts, and do 
reverentially bow to all their decisions whenever they deserve horn:; 
age, and I entertain high admiration for the great minds who have 
illuminated the Federal judiciary. When acting in its rightful sphere, 
none shall be permitted to yield more willing reverence for its decrees 
or be a more zealous friend of its legitimate authority than myself. 
The Federal Government is supported by three independent pillars: 
the legislative, executive, and judicial. If either be ruthlessly thrown 
down, the grand fabric will fall. While resting on its proper basis 
each supports the other and renders the whole strong enough to re¬ 
sist any assault. 

STATE AND FEDERAL GOVERNMENT. 

But the system of government under which we live is dual, the 
States being a miniature of the National Government in its form; 
yet each and their governmental departments are separate and inde¬ 
pendent within their proper limits. In order that there may be sta¬ 
bility and harmony, each must be confined to its true functions with¬ 
out trespass upon each other. While I insist upon the independence 
and an observance of the rights of the national judiciary, it is no less 
my solemn duty to guard with jealous care the independence of the 
State judiciary. If I failed to raise the signal of danger and resist 
efforts to carry either beyond its constitutional limits, I would be 
disloyal to the trust reposed in me by the people whom I represent 
upon this floor. 

We know that no good government can long exist without an effi¬ 
cient judiciary, and it is especially true in a republic that justice 
should be found at its basis, to which all should be made to yield, 
ruler and ruled, those of high as well as of low degree, the upright 
as well as the vicious. In the dispensation of justice by freemen, 
Bentham’s idea of equality should be adopted as a cardinal maxim: 

Everybody to count for one, and nobody to count for more than 
one.” 

The line between the Federal and State governments is clearly 
enough defined in the Federal Constitution. 

They who made that instrument employed simple and plain lan¬ 
guage so that its meaning might be grasped by those of ordinary 
capacity upon all questions arising between the States and Federal 
authority. In order to avoid mistake and guide the understanding 
unerringly the tenth amendment was subsequently added, by which 
it is declared that all powers not delegated to the United States nor 
prohibited to the States shall be reserved to the States or the people. 
We are told in the Federalist that the powers delegated to the Fed¬ 
eral Government “ are few and defined” and relate chiefly to external 
obj ects, while the Sta tes retai n a residuary and unrestricted sovereignty 
over all other subjects. And yet the dikes and barriers erected to 
defend the State judiciary, and through it the liberties of the people, 
have been broken down by congressional action and insidious con¬ 
struction of the courts, until the limits of the Federal judiciary have 


6 


become so obscured that the clearest legal mind cannot accurately 
discover them. 

Judge Story says the power to remove causes pending in a State 
court to the jurisdiction of the Federal courts “ is not to be found in 
express terms in any part of the Constitution; if given it is only given 
by implication.” (2 Story’s Const., 1745.) 

In my judgment, sir, it has its origin in the unjustifiable interfer¬ 
ence by congressional enactments, but to a great and more dangerous 
extent by constructions of the Federal courts, which go beyond the 
letter or spirit of either the Constitution or acts of Congress. 

CONSTITUTION IN DANGER FROM THE CONSTRUCTIONISTS. 

I insist that there is sufficient ground for the fear that the Consti¬ 
tution may be destroyed by construction to arouse the attention of 
the lovers of the Constitution and the present form of our Govern¬ 
ment. Alexander Hamilton had perhaps more to do with originating 
the Federal judicial power than any one person. He had but little 
faith in the practicability of our Republic. In his desire to establish 
a strong centralized government, or monarchy, he no doubt in this 
insidious manner seized upon this opportunity to sow the seeds of 
centralization. If such was his design he displayed wonderful power 
of forecasting the eagerness of the Federal judges to aggrandize their 
power even at the expense of the sovereignty of the States as repre¬ 
sented in their judiciary. 

WHAT WAS THE MEANING OF THE FOUNDERS OF THE GOVERNMENT ? / 

Suppose the language of the Constitution in this regard was not 
clear, will not sound lawyers admit that the canons of construction, 

BO familiar to all, should be observed and its true meaning sought 
for from the intentions of those who made the Constitution ? If so, 
can you review the spirit and principles of the men who created that 
instrument, can you study the debates over its provisions by the 
founders of the Government when fresh from a bloody conflict with 
centralization and monarchy, remember their jealousy of the inde¬ 
pendence and rights of the States, how they met and drove to the wall 
every advocate in that great convention who sought to frame a gov¬ 
ernment of strong centralized powers, and then believe that these 
men intended the work of their hands to be made an instrument for 
such an invasion of the rights of the States ? 

No, sir ; if the men of 1776 and 1787 apprehended such a danger to 
be possible from congressional enactment or the construction of the 
courts, they would have established such ramparts around the inde¬ 
pendence and powers of the State judiciary, and would have placed 
such limitations upon the jurisdiction of the Federal courts, that 
•onstruction would fail in its ingenuity to devise a way to overleap. 

JEFFERSON'S VIEWS ON THE DANGER OF JUDICIAL POWER. ^ 

The apprehension I have expressed of serious danger to the Govern¬ 
ment arising from the lust of judicial power and of a conflict be¬ 
tween the jurisdiction of the Federal and State courts is not based 
upon idle fears. It was an apprehension which disturbed the mind 
of Jefierson. Looking into the future, he predicted dangers arising 
therefrom to the very existence of the Government, and which, if 
permitted to go on unchecked, would eventuate in the total over¬ 
throw of the Republic. 

No man whose name is connected with the history of this country 
knew more of ,$he true character of this Government and the proper 
relations of the States to the National Government than that pro¬ 
foundly philosophic statesman. Indeed its republican features are 
due more to the plastic hand and the giant intellect of Thomas Jef¬ 
ferson than of any other mortal being. Our system is really Jeffer¬ 
sonian, or based on his theory. He is the greatest genius of free gov¬ 
ernment found in the history of the world. The republic of Plato 
was utopian. Every effort of man to establish and maintain free 


7 


government had been an utter failure. No one had preceded him in 
formulating a practical republic. Whether it shall be enduring de¬ 
pends alone upon the virtue and intelligence of its citizens and their 
adherence to the fundamental principles on which it was established. 

Jefferson was not only the master-mind in forming the outlines of 
our Government, but he studied and left the impress Jof his genius 
upon its details. He viewed the encroachments of the Federal judi¬ 
ciary with serious alarm, and fearlessly denounced them with his 
trenchant pen. But let him speak for himself. In a letter to Mr. 
Thomas Ritchie, in 1820, he wrote : 

The judiciary of the United States is the subtle corps of sappers and miners 
constantly working under the ground to undermine the foundations of our confed¬ 
erated fabric. 

He wrote to Archibald Thweat, in 1821: 

I am sensible of the inroads daily making by the Federal into the jurisdiction 
of its co-ordinate associates, the State governments. * * * The judiciary branch 
is the instrument which, working like gravity, without intermission is to press us 
at last into one consolidated mass. * * * if Congress fails to shield the States 
from dangers so palpable and so imminent, the States must shield themselves and 
meet the invader foot to foot. 

To Mr. C. Hammond he wrote, in 1821: 

It has long, however, been my opinion, and I have never shrunk from its ex¬ 
pression, * * * that the germ of dissolution of our Federal Grovemment is in the 
Constitution of the Federal judiciary, an irresponsible body, (for impeachment is 
scarcely a scare-crow,) working like gravity by night and by day, gaining a little 
to-day and a little to-morrow, and advancing its noiseless step like a thief over the 
field of jurisdiction, until all shall be usurped from the States and the government 
of aU be consolidated into one. 

To Mr. T. Barry, in July, 1822, he wrote: 

The foundations are already deeply laid by their decisions for the annihilation 
of constitutional State rights and the removal of every check every counter¬ 
poise to the ingulfing power of which themselves are to make a sovereign part. 

If this subject in its infancy excited such serious alarm in the im¬ 
mortal author of the Declaration of Independence, may I not be par¬ 
doned for expressing fears to-day when the court has made such rapid 
strides in absorbing the jurisdiction of the State courts ? If the sage 
of Monticello felt justified in hurling his anathemas at the Federal 
judiciary while it was illumined and presided over by him who has 
been held to be the ablest and one of the purest of the Federal judges 
(Marshall) and when its abuses were but a small stream, what would 
be his language to-day if he were out of his grave and could witness 
the stream, swollen into a mighty river, whose banks are overflow¬ 
ing with waters gathered from streams in every State, leaving behind 
empty channels ? 

THE DANGER OF CONFLICT BETWEEN STATE AND FEDERAL COURTS. 

None will assert that Story was given to idle fears and wrote with¬ 
out reflection. He, too, apprehended danger from this cause. Mark 
what he said in his great work on the Constitution: 

If State courts should deny the constitutionality of the authority to remove suits 
from their cognizance, in what manner would they be compelled to relinquish the 
jurisdiction ? In respect to criminal cases there woidd be at once an end of all 
oontrol and the State decisions would be paramount to the Constitution; and though 
in civil suits the courts of the United States might act upon the parties, yet the 
State courts might act in the same way, and this conflict of jurisdiction would not 
only jeopard private rights but bring into imminent peril public interests.—2 Story's 
Const., 1746. 

The conflict has been avoided in the past because the invasion .by 
the Federal judiciary “ has been noiseless and therefore unalarming” 
to the people, and because prior to the war neither Congress by positive 
enactments nor the courts by construction had gone so far as to ma¬ 
terially affect the convenience of the people or the business of the 
State courts. They therefore preferred to yield than to array active 
opposition. The injury was so light it was believed that public weal 
demanded submission rather than disturbance. 


8 


ENCROACHMENT OF THE FEDERAL COURTS OVER STATE COURTS. 

Of late years the Federal judiciary has gone with “ noiseless step ” 
so far into the territory which lies beyond their domain, and appar¬ 
ently so harmless, that the people have become habituated to its 
presence and have patiently submitted to what could have been re¬ 
sisted as an unwarranted invasion of their rights had it come in more 
robust and ruthless form. 

In our civil-war period we found as in all civil wars that intei' anna 
silent leges. When the minds of the people were concentrated upon the 
smoke of battle and the conflict of arms, and when the confusion 
following the war had seized upon the public mind, the Federal judi¬ 
ciary and the advocates of centralization in Congress stole a march 
upon the people. Prior to that period it hung upon the outskirts of 
the domain of the State judiciary, but during the war and the con¬ 
fusion resulting therefrom they have advanced to the very heart of 
that territory and have asserted as a claim of right what before was 
based upon sufferance. The steady advance of this power must be 
arrested or the danger of total annihilation of the independence of 
the State judiciary will be apparent to all, and centralization will 
obtain a triumph which only revolution by force can overthrow. 

Let me direct your attention to a case which recently occurred, 
where if the people of the State had not become inured to the cen¬ 
tralizing tendency of the Federal powers the hour of danger appre¬ 
hended by Jefferson and Story would have arrived. The Wisconsin 
Legislature attempted to avert demolition of the independence of 
her State judiciary by an enactment providing that grants of char¬ 
ters to insurance companies, or their privilege to do business in that 
State, should be allowed on the condition that it should not remove 
suits against it from the State to the Federal courts. A company ac¬ 
cepted its charter on that condition, but afterward disregarded this 
provision. The Supreme Court of the United States held that the act 
of the Legislature was unconstitutional, and the agreement of the 
insurance company void. Now, if the judiciary of Wisconsin had 
adhered to the legality of the charter and maintained the constitution¬ 
ality of the legislative act, and in defiance of the Federal decision by 
its process enforced the rights and dignity of the State, an alarming 
conflict would have ensued without any superior authority to deter¬ 
mine the conflict. 

LEGISLATION ON REMOVAL OF CAUSES FROM STATE TO FEDERAL COURTS. 

Most of the legislation on this subject of removal of causes has 
been enacted since the war. From 1789, when the original judiciary 
act was passed, down to 1866 our Federal judiciary had that essential 
quality of a good system—permanency. 

No very bitter complaints from the people against the Federal courts 
were heard during all that long period. It is true that a few wise 
statesmen who had seen the rocks ahead of the ship of state had 
warned us of the dangers of wrecking upon what was beneath the sur¬ 
face of the judicial system. But as I have already intimated, the 
people had never, to any considerable extent, felt the oppression of 
these courts; they disregarded the prophecies of Jefferson and others. 
The dangers are now upon them and they cry aloud for relief. In 
his compilation of the laws and decisions bearing on this subject 
Judge Dillon remarks: 

That the small tide of litigation that formerly flowed in Federal channels has 
swollen into a mighty stream. 

And he further remarks: 

Certain it is that of late years the importance of the Federal courts has rapidly 
increased, and that much, perhaps most, of the great litigations of the country is 
now conducted in them. This is notably so in the TVestern States. 

And: 

The limited right in this regard [removal of causes from State courts] given by 


9 


the judiciary act has been enlarged from time to time until a very considerable 
portion of the contested cases in the Federal courts now reach them through tliis 
channel. 

I call attention to his testimony on this point because he has done 
as much to enlarge the jurisdiction of the Federal courts by the dan¬ 
gerous power of construction as any judge who has sat upon the Fed¬ 
eral bench. But the learned judge fails to tell us that the “ limited 
rights in this regard ” have been enlarged far beyond their boundaries 
by constructions of the laws of Congress in decisions of the Federal 
courts which have excited the surprise and anxiety of some of our 
soundest constitutional lawers and most patriotic citizens. He 
also fails to tell us that this enlargement of the jurisdiction of the 
Federal courts has resulted in encroachments upon the legitimate 
domain of the State judiciary. 

In the course of my remarks I shall refer to some of the statutes 
and decisions conveniently compiled by Judge Dillon in this work. 

ORIGINAL JUDICIARY ACT OF 1789. 

As I have already indicated, from 1789 until the act of July 27, 
1866, the twelfth section of the judiciary act remained as the only 
statute authorizing the removal of causes from the State courts to 
the circuit courts of the United States on the ground of citizenship 
of the parties. Omitting the cases of aliens, we find that the in¬ 
stances in which removals were authorized are very limited. It was 
restricted or allowed only to the defendant or defendants, and must 
he applied for by all the defendants. 

If some of the plaintiffs were not citizens of the State where the 
suit was brought, or if some of the defendants were citizens of the 
same State with plantiff, or if the defendant answered or submitted 
to the jurisdiction of the State court before applying for the removal, 
or if all the real defendants did not apply for the transfer, then in’ 
neither of such cases could there he a removal under the original judi¬ 
ciary act, or until the enactments of 1866 and those of subsequent 
years. When we compare the law as we find it to-day with those 
prior to that period, we cannot he at a loss to discover the reason that 
the people were so content and patient in this regard. Very few cases 
were or could he then ravished from the State courts. 

THE ACT OF 1866 MANGLED THE JURISDICTION OF STATE COURTS. 

But mark the change in 1866. Are not the people justified in their 
complaints when they contemplate the inroads upon the State juris¬ 
diction ; the impoverishment of State courts ; the annihilation of the 
independence of the State judiciary; the invasion of the rights of 
citizens of the States, and the enormous increase of the cost of the 
Federal courts to the tax-payer. 

Some features of the act of 1866 were very peculiar, I may say ab¬ 
surd. It is therein provided that where a suit is brought by a resi¬ 
dent plaintiff in a State court against a resident defendant and a citi¬ 
zen of another State, the suit could by the non-resident defendant be 
split into two, one half remain in the State court and the other half 
would go to the Federal court to be adjudged by it. The constitu¬ 
tionality of this act was doubted by some of the Federal judges. Even 
Judge Dillon was forced to remark: 

It may be inferred that Confess doubted the power under the Constitution to 
authorize the removal of the whole case since part of the case provided for would 
be between citizens of the same State. 

Mr. Speaker, that act mangled the jurisdiction and insulted the 
dignity of the State judiciary. 

It was a reflection upon the integrity of the peojile of the States. 
Thus dividing the case into two delayed the course of justice, em¬ 
barrassed and annoyed the parties with inconvenience and expense. 
I am certainly warranted in characterizing the act as an absurdity 
in implying that the State court was only capable of determining 
one-half the case. 


10 


My time is too limited to draw your attention to all the features of 
the subsequent acts; I shall only allude to a few of the most impor¬ 
tant. 

ACT OF 1867 AUGMENTED HARDSHIPS OF RESIDENT LITIGANTS. 

The act of 1867 went still further in violation of long-established 
legal principles, as well as augmented the hardships of resident liti¬ 
gants. That act, among other things, provided that the cause might 
be removed ‘‘at any time before trial or final hearing of the suit.’'^ 
This act, for the first time in any country where the common-law sys¬ 
tem prevails, gave the plaintiff the right to turn his back upon the 
forum he had voluntarily chosen and drive his antagonist into the 
Federal courts. 

In the case of Johnson vs. Monel, the plaintiff was a citizen of Iowa, 
one defendant was a citizen of Nebraska and the other a citizen of 
New York; the last was not served with process and did not appear; 
the case was tried in the State court of Iowa, but after the court had 
set the verdict aside the Supreme Court of the United States sus¬ 
tained the plaintiff' in the privilege of further harassing the defend¬ 
ant by dragging him from the jurisdiction where he was first assailed 
into the far more expensive and inconvenient tribunal afforded by the 
Federal jurisdiction. 

The case of Insurance Company vs. Dunn, (19 Wall., 214,) the State 
jurisdiction was arrested in a more offensive manner to the dignity 
of the State court. The plaintiff in this case had a verdict and judg¬ 
ment thereon against the insurance company in the State of Ohio. 
The defendant applied in the State court for a new trial and filed a 
bond, which it seems in that State has the effect of vacating the 
judgment. And then the defendant turned its face to its next friend, 
defied the mandate of the court where it had voluntarily submitted 
to be tried, and before order to set aside was made applied to re¬ 
move the cause under the act of 1867. The Federal judges held that 
there had been no final trial; that the application was in time, and- 
that the suit was removable; and the Supreme Court of the United 
States nullified the judgment of the State court. 

If you regard this ruling, so degrading to the State judiciary, fla¬ 
grantly erroneous, what redress can you find ? These courts have 
arrogated to themselves the power of determining their jurisdiction 
without regard to the opinions of the State courts. No matter to 
what extent the inordinate desire for judicial power may carry the 
Federal judges, the laws of Congress fail to provide a balm for the 
wounds ruthlessly inflicted upon the dignity and independence of 
the State courts. 

Thus, as we see, non-residents and foreign corporations have two 
chances while residents only have one. The act of 1867 still remains 
in force and is not repealed by any subsequent legislation. It is 
supposed this law was enacted for the benefit of persons who had 
gone into the Southern States immediately after the war. If so, the 
era of good-will and peace, now so happily restored, admonishes us 
that no excuse remains for such a plain violation of the rights of the 
State judiciary. 

ACT OF 1875 DELUGES FEDERAL COURTS AND IMPOVERISHES STATE COURTS. 

The act of March 3,1875, goes far beyond all previous acts and del¬ 
uges the Federal courts with a flood of causes removable from the 
State courts, thereby crowding the Federal courts beyond their 
capacity and greatly increasing their cost, while the States are being 
left with large judicial machinery to rust upon a small amount of 
labor. The right of removal is enlarged by this act as to subject- 
matter irrespective of the citizenship of the parties, and in other 
cases to citizenship irrespective of the subject-matter. It removes 
the limitation prescribed by the judiciary act and prior removal acts, 
requiring one of the parties to the suit to be a citizen of the State 
where the suit is brought. 


11 


Whether the acts of 1866 and 1875 are constitutional I believe are 
still open questions with the courts. I am not aware that there has 
been a direct decision of the United States Supreme Court upon 
them, and although it would seem that anyone comparing the act of 
1875 with the provision of the Constitution, upon which Federal ju¬ 
dicial power is based, could hardly believe the act constitutional, 
yet, if we are guided by the uniform decisions of those judges in the 
past on questions of jurisdiction, it cannot be doubted that they will 
sustain the constitutionality of the acts which add to their judicial 
power. 

It will, however, require some ingenious argument to give plausi¬ 
ble coloring to the i)roposition that when the Constitution in exi)licit 
terms limits to cases between citizens of different States” it shall 
be construed to embrace suits between citizens of the same State, as 
the act of 1875 contemplates. The act of 1866 sought to avoid this 
difficulty by dividing the suit in parts, but legislators had become 
sufficiently inured to violations of the Constitution in 1875 to ignore 
and trample under foot the rights of the State judiciary without 
hesitation or remorse. The construction given by the court to the 
original judiciary act when Marshall, Story, and Taney were on the 
bench would be against the jurisdiction,but their seats are filled with 
others now. Time will tell whether they understand the Constitu¬ 
tion any better than their early predecessors. 

ABUSES OF THE LAW OF REMOVAL. 

But let US come to the examination of some of the abuses of this 
law which have become so oppressive to resident litigants. 

The Federal courts by their decisions, and even by obiter dictum 
upon questions affecting their jurisdiction, have given to the lan¬ 
guage of the law very singular construction. In the long line of 
their decisions we find an almost unbroken current running in one 
direction, aggrandizing their power and magnitude. 

CONSTRUCTION IN REOARD TO CITIZENSHIP. 

In the interpretation of statutes as well as contracts we all know 
the rule is that when the language employed is plain and unambig¬ 
uous there is no room for construction; but that rule seems to have 
been disregarded by the Federal courts in passing upon questions of 
jurisdiction, as will be seen by reference to the following instance: 
The acts of Congress authorizing the right of removal from State 
courts are based upon that provision of the Constitution which de¬ 
clares that the “ judicial power shall extend to all cases of law and 
equity * * * between citizens of different States,” &c. 

Worcester defines a “ citizen ” to be “ an inhabitant of a republic 
who enjoys the rights of a citizen or freeman, and who has a right 
to vote for public officers; as, a citizen of the United States.” This 
would undoubtedly contemplate a being possessed of mental and 
physical faculties, of mind, flesh, and blood; a breathing, moving 
creature of God, having a soul. When Taney presided, the court 
held that a free negro of the African race whose ancestors had been 
brought and sold in this country as slaves was not a citizen within 
the meaning of the Constitution, and could not bring a suit in the 
Federal courts. And yet the Federal courts in a number of cases 
have held that a corporation, a mere fiction of the law, a fleshless, 
heartless, soulless thing, not a creature of God but a creature of man, 
is clothed with sufficient attributes of citizenship to remove a cause 
from the jurisdiction of State courts into the Federal courts. 

In other words, for this purpose a corporation of another State, a 
railroad company, a banking company, a shipping company, is a citi¬ 
zen, and that such an organization under the laws of Eussia, Tur¬ 
key, or England is an alien, and endowed with the privilege of de¬ 
fying and scorning State judicial power. Thus the subtle refine¬ 
ment of the constructionists have rendered necessary a new defini- 


12 


tion of the word “ citizen ” and “ alien.” Corporations were indebted 
for this superior privilege to the ingenious invention of the law- 
interpreting, not to the law-making department. This encroachment 
of the Federal judiciary is so far-reaching in its effects they have 
declared that a State is powerless to deprive a corporation of this 
right of removal even where the corporations have made an agree¬ 
ment to waive the privilege. 

By act of Congress in 1868 the right of removal is in express terms 
granted to corporations authorized by the laws of the United States. 
When we find the language used in the Constitution is “ citizens” 
and “ aliens,” it is difficult to understand where Congress finds power 
to confer this power on “ corporations.” 

They have lifted the corporation above and beyond the sovereignty 
of the State or the binding force of its contracts. They have made it 
an imperium in imperio. They hold that when petition and bond is 
presented to the State court for removal the State court has no power 
to refuse the demand for removal, that its rightful jurisdiction ceases 
eo instanti, that no order for removal is necessary, and that the State 
can do no subsequent lawful act affecting the case ; and one distin¬ 
guished Federal judge held that the State court could not even in¬ 
quire into the sufficiency of the bond, but it may be robbed of its 
jurisdiction and the resident suitor be forced from its jurisdiction 
without even the privilege of a look into the sufficiency of the bond. 

It was held by Judge Drummond, in Osgood vs. Chicago, &c.. Rail¬ 
road Company, that where the petition and bond for removal was 
filed with the clerk in vacation, without action or knowledge of the 
court, without any examination by the court of the sufficiency of 
the petition or bond, ipso facto deprived the State court of its juris¬ 
diction. How considerate are these law-givers of a certain privileged 
class, who are relieved of the degradation of even appearing in the 
presence of the State tribunal! 

In another case it was held that where the United States court re¬ 
fuses to return a cause to the State court improperly brought before it, 
the party cannot return to the State court and proceed with his cause, 
but he must remain in the Federal courts and abide their final action. 
On the contrary, if the State court asserts jurisdiction, after a proper 
application for removal, the party does not waive his right of removal 
by remaining and contesting the case in the State court, and he may 
follow the case to the supreme court of the State, and if unsuccessful 
there he has the right to sue out writ of error in the Supreme Court 
of the United States, and upon the record, without examination of 
the merits of the case, the Federal court may reverse the judgment 
of the highest court of the State, with a mandate to reverse the judg¬ 
ment of the lower court, and order a transfer of the cause to the cir¬ 
cuit court of the United States. These courts claim the power to 
stop and tie up the proceedings of a State court by injunction. Truly 
the State judiciary is made the sport and foot-ball of the Federal 
judiciary. 

WHO WILL DECIDE THE CONFLICT OF AUTHORITY? 

Suppose a Federal court should assume jurisdiction of a cause not 
contemplated by the statute and which clearly belongs to the State 
court? Some may say such action of the Federal court would be 
void and not binding, because they can only exercise jurisdiction 
where it has been conferred by the statute; but if the court should 
proceed to enforce their illegal decrees by its process and come in con¬ 
tact with the State j urisdiction, who would decide ? Shall the decision 
be left to the physical forces employed by the sheriff and the marshal ? 
Each of these jurisdictions under our system of Government is inde¬ 
pendent and supreme within its legitimate sphere. 

Such a conflict is not hy any means improbable. The Federal courts 
have been heretofore unrestrained and with impunity have infringed 
upon the territory of the State courts; but I tell you that judges of 




f- 


13 




these courts have seen the harriers of their rightful jurisdiction 
thrown down so often that they are becoming restless under these 
invasions, and may ere long feel that their solemn obligations to 
the people will demand resistance to the depredations and encroach¬ 
ments upon their lawful domain. If so, in the language of Story, who 
will decide the conflict ? In such a cpnflict the triumph of the Fed¬ 
eral courts will be a subversion of the Constitution ; on the other 
hand confusion and disorder may follow. The law authorizing the 
removal of causes is the great source of this danger. I propose by my 
amendment a simple remedy. Repeal this law and make plain the 
boundary of these jurisdictions. Thereby you will prevent the Fed¬ 
eral judiciary from invading the State courts and taking from their 
dockets causes of which they have acquired rightful jurisdiction. 

The Federal courts have long enough ignored, defied, and com¬ 
manded the State courts as tribunals of the most inferior character. 
They are in no sense inferior courts when exercising their legitimate 
functions. 

THE FEDERAL JUDICIARY NO LONGER A SANCTUARY IN POLITICAL STORMS. 

Sir, the judicial department of this Government has in the remote 
past been regarded as the sanctuary for the protection of individual 
and State rights. Amid the darkest hours of political storms in this 
country, when the executive and legislative branches of the Gov¬ 
ernment seemed guided in the performance of their duty by mere 
prejudice and party passion, the patriot has looked with hope and 
confidence to the Federal judiciary as the guardian of liberty and 
law, as the pure and impartial power to stay the hand of mad ambi¬ 
tion and of those who forget the Constitution and the Republic. 

But, sir, he is pained of late years with apprehensions that this 
department of the Government—the sheet-anchor of his hopes—is 
erecting a centralized power upon the ruins of the Republic. Every 
year he witnesses with sorrow and terror the fences erected by the 
fathers around the sovereignty of the States thrown down by judicial 
construction—sees one by one the reserved rights of the States an¬ 
nulled and annihilated. They who formed this Government did not 
dream that when they had shaped the judicial power in the Consti¬ 
tution they had forged a weapon which would destroy the form and 
life of that Government for which they had suffered and labored. 
Had they conceived such a peril to the Republic possible they would 
undoubtedly have placed guards around the State judiciary in lan¬ 
guage too plain for misapprehension. 

In a letter to Judge Johnson dated March, 1823, Jefferson wrote: 

There is no danger I apprehend so much as the consolidation of our Government 
hy the noiseless and therefore unalarming instrumentality of the Supreme Court. 

To Mr. Corry he wrote, October, 1823; 

At the establishment of the Constitution the judicial bodies were supposed to 
be the most helplesand harmless members of the Government. Experience, how¬ 
ever, soon showed in what way they were soon to become the most dangerous ; that 
the insufficiency of the means provided for their removal gave them a freehold and 
irresponsibility in office; that their decisions, seeming to concern individual suitors 
only, pass silent and unheeded by the public at large ; that their decisions neverthe¬ 
less become law by precedent, sapping by little and little the foundations of the 
Constitution and working its change by construction, before any one has perceived 
that invisible and helpless worm has been busily employed in consuming its sub¬ 
stance. 

When the Federal Constitution was before the Virginia State con¬ 
vention for ratification or rejection, Patrick Henry uttered this pro¬ 
phetic language: 

I see arising out of that paper a tribunal that is to be recurred to in aU cases 
where the destruction of the State judiciary will happen, and by it the State courts 
will soon be annihilated. 

The fears which haunted Patrick Henry and Thomas Jefferson in 
the evening of their lives are being realized now in the tendency of 
the Supreme Court and other branches of the Government to central- 


14 


ization and in destruction of sovereign and reserved rights of the 
States. If permitted to go on without restraint our system of gov¬ 
ernment will in truth he revolutionized, and the change from a 
republic to a monarchy will be made easy. I deplore this. I believe 
the reserved rights of the States the most precious of the rights of 
the people; they furnish the best safeguard for the protection of the 
life, liberty, and property of the citizen. Let us stay the threatened 
dangers by saving our State judiciary from annihilation. Do not 
increase the Federal judiciary, lest it will like Aaron’s rod eat up 
the rights of the States. 

INCONVENIENCE OF FEDERAL COURTS. 

The great inconvenience occasioned by this law to residents of these 
States furnishes a sufficient reason to warrant the adoption of this 
amendment. That profound moral philosopher, Paley, in treating of 
courts, said; 

If the court be remote and solemn it becomes by these qualities expensive and 
dilatory. The expense is unavoidably increased when witnesses, parties, and agents 
must be brought to attend from distant parts of the country; and where the whole 
judicial business of a large nation is collected in a few superior tribunals, it will 
be found impossible, even if the prolixity of forms which retards the progress of 
causes were removed, to give a prompt hearing to every complaint or an immediate 
answer to any. 

In our own country and times, where localities are remote from 
points in which the Federal courts hold their sittings, these laws have 
operated in many cases to defeat the ends of justice. The section in 
which I reside is about two hundred and seventy miles from the State 
capital, where the United States courts are located, to which our 
causes are removed when taken from the State courts. I can say of 
my own knowledge that just and meritorious causes have been aban¬ 
doned against insurance companies for the reason that the plaintiffs 
could not bear the oppressive expenses of litigation so far away from 
home. This is a denial of justice to the poor. 

OPPRESSION BY CORPORATIONS. 

The practice has perhaps become universal that litigious insur¬ 
ance companies, even in cases w^here a widow sues in a State court 
for the life policy of her deceased husband or a man sues for the 
policy on his dwelling destroyed by fire, these companies resort to 
the privilege of removal. They shield themselves under the protect¬ 
ing wing of the Federal courts, force its adversaries to bring their 
witnesses, and incur the enormous expense attending the slow pro¬ 
cess of securing a trial in the overcrowded Federal courts. This vex¬ 
atious expense and delay enable wealthy corporations to crush 
many holding just claims against them and force them to either re¬ 
linquish their suits altogether or compromise on such terms as are 
dictated by the agents of their powerful and heartless antagonist. 

RIGHT OF TRIAL WHERE LITIGATION ORIGINATES. 

When the right of trial by jury—that bulwark of civil and polit¬ 
ical liberty—was established in our parent country it became a part 
of the law that the trial should be had in the county where the of¬ 
fense was committed, and so jealous were our ancestors of a subject 
BO vital to the security of the citizen they went still further and re¬ 
quired that the jury itself should come from the vicinity where the 
crime was alleged to have been committed. Except in transitory 
actions the same reasoning with regard to this applies to civil as to 
criminal proceedings. 

Judge Story has said that— 

One of the fundamental objects of good government must be the due adminis¬ 
tration of justice. 

Is it not vain to claim that we have such an administration when 
the private rights and property of the citizen is left to the avarice 
and selfishness of powerful corporations and wealthy non-residents ? 


15 


Can it be of any advantage to the widow and children of the deceased 
husband that she has a right of action ife a court beyond her reach 
for the policy on the life of her deceased husband ? From the scanty 
earnings of a life of toil he may have promptly paid every installment 
of the premiums. He may have suffered self-denial; his wife and 
children may have endured privation and want in order that if death 
should remove their supporter a legacy would be left to keep away 
the lean wolf'of hunger from the home of his bereaved family. 

Now, when the sod has been heaped upon his grave, is it any con¬ 
solation for the helpless family to say to them if they have the means 
to employ lawyers, pay witness fees and expenses far away from 
home, follow the case from the State to the United States circuits, 
and then perhaps a thousand miles or more away to the Supreme 
Court at Washington, where it must lie at least three years in a con¬ 
test with a corporation having millions under its control. Such a 
law, sir, is a solemn pageantry, a mockery of the widow in her grief- 
stricken and lonely condition. It has been said by a wise man, a pro¬ 
found legal thinker, an able exponent of constitutional law in this 
country, that— 

If the people are enlightened, honest, and zeah us M defense of their rights and 
liberties it will be impossible to sui j)rise them into a surrender of a single valuable 
appendage of the trial by jury. 

I appeal to you now to regain what has been surrendered of the 
“ valuable appendages ” of ha ving the trials, juries, and courts among 
the people. It is only in the State courts that justice can be obtained 
without delay. The right to a speedy trial comes to us from Magna 
Charta. “Xulli vendemus, nulli negabimus, aut differ emus rectum veljus- 
titiam.” ‘‘We will not refuse or delay to do justice” is its language. 

Sir Edward Coke, in explaining that principle of Magna Charta, 
said: 

Therefoi c every subject may take his remedy by the course of the law and have 
justice and right for the injury done to him, freely and without sale, fully without 
any denial, and speedily without any delay. 

Can you say that we enjoy this right so legitimately inherited from 
a brave ancestry who at the peril of their lives extorted it from a 
tyrannical king in a rude and dark age ? Our title to it is six hun¬ 
dred years old. Is the wisdom and courage of this enlightened cen¬ 
tury unable to maintain this great charter in a land of freedom ? 

Can it bo said justice is dispensed freely, fully, and without delay, 
where power is given to an arrogant and powerful litigant, in defiance 
and contempt of the jurisdiction of the courts, in Illinois or Califor¬ 
nia to remove a cause from the docket and force its feeble opponent 
into another jurisdiction two hundred miles away, and, if poverty and 
despair have not compelled an abandonment of the suit, carry the 
cause to the Supreme Court in this city, one thousand or three thou¬ 
sand miles away, and still further clog the wheels of justice with 
three years’ delay. 

Such a law places in the hands of the mighty the dreadful weax)Ous 
of poverty and despair in their battle with the poor and unfortunate. 
Some may say this is justice, but many who are not altogether with¬ 
out wisdom will call it more in the nature of mockery and cruelty. 
One of the prime objects for which governments are instituted is to 
protect the weak from the injustice of the strong. Shall we tolerate 
the reversal of this doctrine by permitting the Government to be used 
as an instrument of oppression in the hands of the strong ? 

PLANS FOR INCREASE OF FEDERAL JUDICIARY. 

The Attorney-General has recommended in his last annual report 
that the number of judges on the Federal bench be increased, and that 
an intermediate appellate court be established in order that the over¬ 
crowded condition of the Supreme Court may be relieved. This is 
also advocated by able and experienced gentlemen in another body. 
I am opposed to this scheme and cannot agree with its promoters. 


f 


16 


It does not do away with the enormous expense of litigation in the 
Federal courts, hut will adft greatly thereto. It will largely increase 
the expenses of the Federal judiciary. God knows we have enough 
life officers in this Republic drawing salaries from the earnings and 
labors of the people. Confine the United States courts to the legiti¬ 
mate limits of their jurisdiction as designed by the founders of the 
Government, and the judges will not complain of being overworked 
or of the necessity for increase on the bench. 

REPEAL OF BANKRUPT LAW WILL RELIEVE THE COURTS. 

An act has been passed within the past few days which will relieve 
these courts of a very large portion of that character of business now 
overcrowding them. I refer to the repeal of the bankrupt law. A 
very large portion of their work during the last ten years has been due 
to the bankrupt law. I have not had access to the statistics which 
will show the number of cases of which the courts will be relieved by 
the repeal of the bankrupt law, but a statement was made in another 
place the other day upon which we may base some opinion. 

From a statement furnished by the clerk of the northern division 
of Illinois, it was ascertained that out of forty-six hundred and six 
on the dockets of the various branches of the court in that division 
on May 1 last, eleven hundred and six-seven were bankruptcy cases, 
being about one-fourth of the causes in court. If this is a fair aver¬ 
age for the other courts of the United States, by this means the work 
of the Federal courts will be diminished one-fourth. The amendment 
I offer in connection with the bill introduced from the Judiciary Com¬ 
mittee will undoubtedly relieve the courts of at least an additional 
one-fourth or one-third of its business. 

LITIGATION REDUCED ONE-HALF. 

Pass this bill and amendment, and you will complete the legislation 
which will diminish the work of these courts at least one-half and 
thereby reduce the enormous expenditures of the Federal judiciary 
and remove all cause for the creation of new judges or the machinery 
of the courts. Delay will be avoided, and you will have secured that 
object so greatly desired in the administration of justice, prompt¬ 
ness and cheapness. 

ECONOMY OF THIS MEASURE. 

Let us discuss this question for a while from the stand-point of 
economy. Surely no one will complain of me for treating the subject 
in this view when the distress in the country and the heavy burden 
resting on the tax-payers are considered. 

I have obtained from the Chief of the Bureau of Statistics a state¬ 
ment of the cost of the United States courts which should arrest the 
attention of every conscientious legislator who desires to lop off un¬ 
necessary expenditures of public money. 

The table which I have shows the expenditures of the United 
States courts for the years named as follows: 


1850 

I860 

1865. 

1870. 

1875 


$497, 5S8 54 
936, 477 61 
1,192, 272 84 
2,162,109 82 
3, 332,182 27 


Three millions were appropriated for the fiscal year of 1877, but 
the Attorney-General reports that it was inadequate to meet the 
expenditures of these courts, and a large deficit was called for. 

It is said “ figures do not lie.” They tell us that in no year during 
the seventy-seven years from 1789 when the original judiciary act was 
adopted down to 1866, when the first act was passed enlarging the 
jurisdiction of the Federal courts by widening the way for transfer 
of causes from the State to the Federal courts, did the expenses of 
these courts reach $1,200,000. And they further show from that time 
onward these expenses have grown with marvelous rapidity as each 







17 


additional act of Congress has been passed. When only six years 
had elapsed since the act of 1866 went into operation the expenses 
of these courts (1873) had increased threefold. 

What has been the effect of this legislation on the State courts ? 
Let lawyers practicing in them give the answer. I know the an¬ 
swer from the West, and perhaps from the South, will be they have 
been rapidly depleted every year since the acts I have mentioned 
went into effect. It is rare that a suit is retained on their dockets 
in which corporations are parties. 

TRANSPORTING JUDGES FROM OTHER CIRCUITS. 

If I had not already consumed so much of your time I would dwell 
upon an abuse which has grown up in recent years of transporting 
persons from other circuits and appointing them judges in circuits 
where they have never had a residence. 

Almost every judge who sits on the bench in the fifth circuit is an 
importation. That circuit embraces the States of Georgia, Florida, 
Alabama, Mississippi, Louisiana, and Texas. The judge on the su¬ 
preme bench who has charge of that circuit is a resident of New Jersey. 
A judge ought to have some acquaintance with the people among 
whom he presides and should undoubtedly be thoroughly conversant 
with the systems of jurisprudence established in the States embraced 
in his circuit. When we remember that the civil law purely prevails 
in Louisiana, and to a large extent in the States of Louisiana, Florida, 
and Texas, is it not passing strange that no one could be found in all 
those States fit to be trusted with that appointment, and that it was 
necessary to select one of the common-law lawyers of New Jersey, 
a State where the common law prevails, to represent those States on 
the supreme bench ? It seems to me it would have been better to 
select one familiar by practice with the civil law and the treatise 
made with the mother-governments of those States and their stat¬ 
utes. There are only nine circuits in the whole Union, yet the judges 
representing two of these circuits on the supreme bench have been 
appointed from Ohio and hold their residences there to-day. Three of 
the supreme judges have charge of circuits in which they do not re¬ 
side. 

In order to afford greater protection to the people of the States, I 
would, by legislative enactments, stay the hand of the power which 
forces litigants from the local courts before a judge on the Federal 
bench, who is not only a stranger to the people, but a stranger to 
some extent of the systems of jurisprudence he is called upon to ad¬ 
minister. 

THIS MEASURE BRINGS THE ADMINISTRATION BACK TO FUNDAMENTAL PRINCIPLES. 

This bill and the amendment seeks to bring the administration of 
law and the Government back to fundamental principles. 

Those who formed the organic law of my State made this injunc¬ 
tion a part of the constitution: “A frequent recurrence to funda¬ 
mental principles of civil government is absolutely necessary to pre¬ 
serve the blessings of liberty.” This is language worthy of a place 
alongside of that found in the bill of rights of the Old Dominion: 
“ That no free government can or the blessings of liberty be preserved 
to any people but by a firm adherence to justice, moderation, temper¬ 
ance, frugality, and virtue, and by frequent recurrence to funda¬ 
mental principles.” ‘Let us, then, return to fundamental principles. 
Let there be equal and exact justice to all. 

But it will be a delusion and a snare if it shall not be so dispensed 
that it may be within the reach of all. History has perpetuated the 
infamous memory of Caligula who wrote his laws in very small 
characters and hung them high upon pillars, so that the people could 
not read them. Beware lest we be accused by the historian of mak¬ 
ing justice so dear and difficult of attainment that its blessings are 
only within the reach of the rich and powerful. Let it not be said 
2 TO 


18 


0 028 001 721 


of US as was said by the poet of another land: “ That its laws grind 
the poor and the rich men rule the law.’’ 

You do not desire that it shall be said of our courts, as was said by 
the immortal bard of Avon of the courts of his day— 

Plate sin witli gold, 

And the strong lance of justice hurtless breaks. 

Arm it in rags, a pigmy’s straw doth pierce it. 

Justice is more easily and quickly obtained by the poor in the 
State courts than in the Federal courts. This bill and amendment 
will promote liberty, promote justice, promote economy, and promote 
the general welfare. 

I trust the members of this American Congress will give careful, 
intelligent, and conscientious consideration to a question fraught 
with such deep import to the autonomy of the States, the sovereign 
and primary rights of the people, and their convenience, peace, and 
fortunes. 







